The permanent resident (green card) process for physicians consists of two basic steps: an immigrant visa petition, either Form I-140 for employment-based petitions or Form I-130 for family-based petitions; and an adjustment of status application, Form I-485. For a physician, completing both steps can take from 18 months to between five and six years or longer, depending on J-1 waiver issues and nationality. A J-waivered clinical physician may not file the I-485 or, in the case of a National Interest Waiver (NIW) green card process, obtain approval of the I-485, until after a three-year or five-year service term is completed.
A second factor lengthening the green card process for physicians is quota delays based on nationality. While all physicians may have an immigrant visa petition filed on their behalf at any time, not all nationalities may complete the green card process by filing the I-485 as soon as the I-140 is approved.
PERM or NIW or EB-1-A
Three types of employment-based permanent resident processes are available to physicians.
PERM (“Program Electronic Review Management”) is an electronic process for filing labor certification applications for permanent employment-based immigration. This process has three steps: (1) employer-driven recruitment and labor certification filing with the U.S. Department of Labor (“USDOL”); (2) the employer’s I-140 petition to the immigration service showing the employer can pay the physician’s salary; and (3) the physician’s I-485 application. The processing time can vary. As of 2016, the first step normally takes about nine months, and the second step can take between four and ten months. The third step can take six months or more, after completion of the J-waivered three-year period in H-1B and the EB-2 quota delay, if any.
- National Interest Waiver (NIW)
The NIW requires the physician to work for five years in a medically underserved area or at a Veteran’s Administration (VA) facility. This process has two steps: (1) the physician’s NIW petition (Form I-140) and (2) the physician’s I-485 application. Processing times for the green card can be six months or more, after completion of the five-year period of shortage-area employment and the EB-2 quota delay, if any.
In both of the above paths, physicians from India and China cannot file I-485 until after the quota delay.
- Extraordinary Ability (EB-1-A)
EB-1-A is an immigrant visa category for those possessing “extraordinary ability” in their field of endeavor. An EB-1-A petition can be filed either by the physician or the employer. EB-1-A petitions are not reviewed by USDOL; however, they require more extensive documentation from the physician, such as scholarly publications, awards and work experience. The EB-1-A category is not currently subject to quota delays, so the I-485 can be filed at the same time as the petition.
There are several relevant factors to consider in deciding on a green card strategy.
The first key factor is obtaining the earliest possible priority date. A priority date ensures the green card applicant a place in line in the visa quota backlog. A priority date is established by the filing date of a PERM labor certification or a NIW-based Form I-140. Usually, an NIW-based Form I-140 may be filed sooner than a PERM application, which takes at least 90 days from start of recruitment to filing.
Why is an earlier priority date important? Not only does an early priority date quicken the process for Indian and Chinese physicians in the green card queue, but it can allow the physician to work in H-1B status beyond the six-year maximum time period for H-1B workers. If the physician establishes a priority date before his/her fifth year anniversary in H-1B status, the physician can extend the H-1B beyond the sixth year. Thus, an NIW petition can serve to establish a quick priority date to ensure continued work authorization.
The second key factor is portability, or the ability to change employers. PERM, NIW, and EB-1-A afford portability in different ways.
With the filing of a PERM application, the physician is required to work for the PERM sponsor in order to complete the process and become a U.S. permanent resident, which may be several years in the future. The physician can work for another employer regardless of whether that employer is located in a shortage area (after completing the required three-year service requirement, in the case of J-1 physicians); however, the physician must return to the PERM-sponsoring employer to complete the process, and both must maintain the intent to continue the employment. If, after an I-140 is approved for the PERM sponsor, the physician leaves the employer, the original filing date of the first PERM may be recaptured, or carried over, to the new employer, thereby eliminating the need to repeat the quota wait.
With an NIW filing, a physician is obligated to work for five years in a shortage area. After the three years of J-1 waiver service is completed, the physician may “port” to another employer. However, the new employment, if still within the five-year service obligation, must be in a shortage area. The benefit of an NIW filing is that, before and after the five-year service obligation, the physician has no obligation to return to any particular employer. For physicians facing quota backlogs of six years or more, the NIW filing may therefore offer more portability than the PERM process.
EB-1-A applicant physicians enjoy portability of the green card process to any other job that is in the same field of “extraordinary ability.”
Length of the green card backlog
If the physician has no green card backlog, or the wait to file a green card is not too long, a PERM filing may be preferable to an NIW, depending on what stage the physician is at in his/her three-year service. The goal is to be able to apply for a green card as quickly as possible. If there is a chance that the priority date for a physician will become current in the near future, it might be best to file a PERM application, which would allow the physician to apply for a green card as soon as the date becomes current, as opposed to waiting the additional years to fulfill the five years of service required for an NIW applicant. As of October 2016, the green card backlog is four years for a Chinese physician and nine years for an Indian physician.
Continued work authorization
One of the most important factors in considering the PERM vs. NIW is continued work authorization, both for the physician and for the physician’s dependent spouse. If the physician is at the end of his/her sixth year in H-1B status (and not from India or China), then an NIW plus green card filing might be necessary to ensure that the physician can continue to work. This is because the NIW route has the initial advantage of providing work authorization and travel permission within three to four months of filing. If the physician is from India or China, the goal is to establish a priority date before the physician’s fifth year anniversary in H-1B status to ensure extension of H-1B status beyond the six-year limit. Depending on how much time the physician has left in H-1B status, a quick NIW could be necessary to establish this priority date.
When a physician and the dependent spouse apply for green cards, interim work and travel authorizations will be issued approximately three to four months after filing for both the physician and the spouse. This would be the spouse’s quickest way to receive work authorization. This option is not currently available for Indian and Chinese physicians. However, a rule effective from 2015 allows certain H-4 dependent spouses of H-1B workers to apply for work authorization if the H-1B spouse either has an approved Form I-140 or has been in H-1B status for seven or more years.
Both PERM and NIW, simultaneously
A physician may elect to file both a PERM and an NIW. Although a physician can only receive one green card, the strategy is to seek two green cards simultaneously, but only complete one of the processes. The NIW can provide quick work authorization and establish a priority date, while the PERM process could allow the physician to receive the green card more quickly.